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New York City Adds More Exceptions To Pre-Employment Marijuana Testing Ban

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New York City officials have finalized rules for a local ban on pre-employment drug testing for marijuana, and they added additional exemptions that will allow an even greater number of workers to be screened for cannabis before they are hired.

The City Council approved the ban last year, and it was enacted without Mayor Bill de Blasio’s (D) signature. It stipulates that, generally speaking, companies in the city can’t conduct pre-employment tests for THC metabolites unless the position is safety sensitive. The policy took effect in May.

As originally written and passed, the bill included language carving out exceptions from the prohibition on testing for those applying to certain jobs such as police officers and people charged with supervising or caring for children, as well as positions “tied to a federal or state contract or grant.”

However, it also contained a provision that allowed the New York City Commission on Human Rights to expand the list of excepted jobs. That body proposed its own set of regulations in April and has been in the process of finalizing those rules in the months since.

On June 16, the commission voted unanimously to approve the finalized rules, including new exemptions on top of what they initially proposed.

Workers who use heavy machinery, spend a significant amount of time at a construction site, work on or near power or gas utility lines or regularly operate a motor vehicle for work would still be subject to pre-employment drug testing for cannabis. The language around working “near” utility lines wasn’t in the original proposal, and the motor vehicle stipulation was loosened to cover workers who drive “on most shifts” rather than just those who do so “on an approximately daily basis.”

The commission also added a new section stating that those with “work relating to fueling an aircraft, providing information regarding aircraft weight and balance, or maintaining or operating aircraft support equipment” will also be exempt from the cannabis testing ban.

A catch-all for workers whose marijuana consumption “would interfere with the employee’s ability to take adequate care in the carrying out of his or her job duties and would pose an immediate risk of death or serious physical harm to the employee or to other people” remains in the finalized rule, which takes effect on July 24.

Reform advocates have widely celebrated the policy overall, applauding local lawmakers for taking steps to protect cannabis consumers against discrimination. But some—including the Marijuana Policy Project—argue that the exemptions are excessively broad.

New York City Public Advocate Jumaane Williams (D), who sponsored the legislation that created the ban, previously said he’s opposed to adding any exemptions to the law because he believes that “no individual should be tested for THC, and I stand firmly against any expansion of exemptions to Local Law 91.”

Of course, cannabis remains illegal for recreational use in New York despite efforts from Gov. Andrew Cuomo (D) and legislators to enact it through the state budget over the past two years. But the City Council did draft the testing ban with the expectations that marijuana would eventually become legal for adult use in the state.

“It was introduced by the public advocate in the context of legalization of marijuana [which] had a lot more momentum. There was an assumption that that would be in place by the time this went into effect,” a member of the commission said prior to the body’s vote on the final rule last month. “But the intent as we understand it behind the law was to lower barrier to entry for folks.”

Some lawmakers recently called for legalizing cannabis to be a part of the state’s policing reform efforts amid protests over police killings of black Americans.

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Kyle Jaeger is Marijuana Moment's Sacramento-based senior editor. His work has also appeared in High Times, VICE and attn.

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